Real Electoral College Reform – Part IV

(In Part IV of this series we examine the National Popular Vote Interstate Compact now under consideration in legislatures across the country and the unintended consequences that proponents of the Compact have failed to take into consideration)

Unintended Consequences of the National Popular Vote

In the November 2000 General Election, Al Gore and Joe Lieberman won the national popular vote by 50,999,897 to 50,456,002 over George W. Bush and Dick Cheney. A switch of just 271,948 votes (0.27%), or one vote out of every 373 votes cast, would have given Bush-Cheney a slim popular vote victory, along with a narrow 271 to 266 vote victory where it really counted… in the Electoral College.

Then, in the 2016 General Election, Hillary Rodham Clinton and Tim Kaine won the national popular vote by 65,853,516 to 62,984,825 over Donald Trump and Mike Pence. A switch of just 1,434,346 of the total 128,838,341 votes cast, or one vote out of every 90 votes cast (1.1%) would have given Trump and Pence a narrow popular vote victory, along with a comfortable 306 to 232 vote victory in the Electoral College.

Needless to say, Gore-Lieberman partisans in 2000 were outraged to learn that their candidates had won the national popular vote by nearly 544,000 votes, nationwide, but lost the election in the Electoral College by just five votes, 271 to 266 (one Gore-Lieberman elector in DC failed to vote). After all, they argued, isn’t it a core principle of democracy that the majority rules? Within a matter of months, an organization called The Committee for the National Popular Vote (CNPV) was launched.

In his introduction to the book, Every Vote Counts: A State-Based Plan for Electing the President by National Popular Vote, the “Bible” of the national popular vote movement, former Republican congressman and 1980 independent presidential candidate John B. Anderson had this to say: “I believe the occupant of the nation’s highest office should be determined by a nation-wide popular vote by legally registered voters. The current system… can trump the national popular vote. The system is not based on majority rule, and it fails to provide political equality.”

What Anderson suggests would horrify baseball fans. What he is suggesting, in baseball terms, is that if the Yankees and the Phillies were to meet in a seven-game World Series, in which the Yankees won three games, 5-3, 6-1, and 3-2, while the Phillies won four games, 5-2, 6-5, 5-4, and 2-1, the Yankees should be declared World Champions because they scored 26 runs in the seven-game series while the Phillies scored only 24. It doesn’t work that way in major league baseball and it certainly doesn’t work that way when fifty sovereign states vote to select a president and vice president. Any scheme for selecting a president and vice president by national popular vote would violate the original intent of the Framers and would be unconstitutional.

The National Popular Vote Committee proposes to create an interstate compact, the National Popular Vote Interstate Compact (NPVIC) subtitled, “The Agreement Among the States to Elect the President by National Popular Vote.” As CNPV explains, “Under the National Popular Vote bill, all of the (member) states’ electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes… that is, enough electoral votes to elect a President (270 of the total 538 electoral votes).”

Clearly, the NPVIC was conceived as a means of circumventing Article II, Section 1, Clause 2 of the U.S. Constitution without having to resort to the amending process outlined in Article V of the Constitution. But, is the national popular vote a good idea or a very bad idea?

The primary concern of the Framers was that a foreign power might one day attempt to achieve through corruption and political intrigue, that which they could not achieve on the battlefield.

With that thought in mind, is it even remotely conceivable that, just five years and eleven months after the British surrendered at Yorktown, the Founders would have presented to the states for ratification a Constitution that would allow an individual with potentially divided loyalties… i.e. a person with dual US-British citizenship… to serve as President of the United States and Commander in Chief of the Army and the Navy? To think that they would have done so requires a willing suspension of reason.

Instead, the Framers insisted that “No Person except a natural born Citizen” should ever serve as president or vice president of the United States. The Electoral College was created to insure the continuation of that restriction for all time. But now the Electoral College system is under sustained attack by those who fail to fully appreciate the wisdom of the Framers.

On August 8, 2011, California joined Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, and Washington, plus the District of Columbia (all blue states which normally vote Democratic), bringing 132 of the needed 270 electoral votes under the NPVIC rule. If, and when, states representing at least 270 electoral votes have joined the NPVIC, then and only then will those states be able to control a simple majority in the Electoral College. But is it possible that the eight blue states that joined the National Popular Vote movement in August 2011 are merely shooting themselves in the foot? Let’s play a little “what if,” using the results from the 2000 General Election.

Under the best-case scenario for Gore-Lieberman, let us assume that the U.S. Supreme Court failed to intervene in the Florida recount and that Florida’s 25 electoral votes were ultimately captured by Gore-Lieberman. Had that been the case, the final Electoral College vote would have been 292 to 246 in favor of Gore-Lieberman. Al Gore would have been the 43rd President of the United States.

However, the United States Supreme Court did intervene in the recount dispute under the “equal protection” clause of the U.S. Constitution and Bush-Cheney were declared the winners of Florida’s 25 electoral votes. But what if Bush-Cheney had also been able to attract just one additional vote out of every 373 votes cast to win a slim national popular vote victory, along with a narrow 271 to 266 vote victory in the Electoral College? What would have been the impact on the final Electoral College vote?

Looking at the electoral votes state-by-state (2000 electoral votes in parentheses), if the thirteen blue states of Connecticut (8), Delaware (3), Iowa (7), Maine (4), Michigan (18), Minnesota (10), Nevada (4), New Mexico (5), New York (33), Oregon (7), Pennsylvania (23), Rhode Island (4), and Wisconsin (11), with a total of 137 electoral votes, had joined with the states that joined the Compact in August 2011: California (54), Hawaii (4), Illinois (22), Maryland (10), Massachusetts (12), New Jersey (15), Vermont (3), Washington (11), and the District of Columbia (3), with a combined total of 134 electoral votes, they would have controlled a total of 271 electoral votes… one vote more than a simple electoral majority.

However, with Bush-Cheney having eked out a razor-thin majority in the national popular vote, the twenty-one NPVIC states, plus the District of Columbia, would have been required to cast all 271 of their electoral votes for George Bush and Dick Cheney… in spite of the fact that 21 of the 22 member states in the Compact had cast a majority of their popular votes for Al Gore and Joe Lieberman.

Combined with the 242 electoral votes that Bush-Cheney won on their own in 28 of the 29 non-NPVIC states, and the 25 disputed Florida electoral votes, the 271 NPVIC votes would have created a unanimous 538-0 victory for Bush-Cheney in the Electoral College, the exact opposite of what the proponents of the NPVIC intended, and certainly not an outcome that the Framers would ever have envisioned.

Most Americans will agree with former presidential candidate John Anderson that the occupant of the nation’s highest office should be determined by legally registered voters. For many years, but particularly in the years since the advent of “motor voter,” “postcard,” “roving registrar,” and “same day” voter registration, unscrupulous political operatives have used those systems to register hundreds of thousands, if not millions, of deceased people, illegal aliens, household pets, cartoon characters, and other ineligible entities as registered voters.

Anderson tells us that, “The Framers distrusted democracy.” Yes, they did, and for good reason. Their objective was to give us a republic, not a democracy, because they knew that the history of pure democracies was not a good one. Nevertheless, those in the National Popular Vote movement would have us believe that pure democracy in the selection of a president and vice president is somehow a good idea, but the exact opposite is true.

If Mr. Anderson is serious about having elections determined only by legally registered voters, he should demand that the Congress and the state legislatures impose heavy fines and mandatory prison sentences on those who would vote illegally, and on those who would abet and/or facilitate fraud, violence, or intimidation in the electoral process.

(Next week: In the fifth and final installment of this series, we will examine the presidential elector selection process currently used by the states of Maine and Nebraska, a system that would represent true Electoral College reform)